Dishonestly Taking or Using a Document

Question 1

Dishonestly taking or using a document

Section and Penalty

Answer 1

Crimes Act 1961; Section 228(1)(a); 228(1)(b)

7 years imprisonment

Question 2

Elements - 228(1)(a)

Answer 2

1. With intent to obtain any
2. Property OR service OR pecuniary advantage OR valuable consideration
3. Dishonestly
4. And without claim of right
5. Takes OR obtains
6. Any document;

Question 3

Elements - 228(1)(b)

Answer 3

1. With intent to obtain any
2. Property OR service OR pecuniary advantage OR valuable consideration
3. Dishonestly
4. And without claim of right
5. Uses OR attempts to use
6. Any document;

Question 4

Intent / Intent to Obtain

Answer 4

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

R v Collister;

The defendant must intend to obtain, and he or she must intend to obtain by the deception.

Question 5

Obtain

Answer 5

CA61; S217

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 6

Property

Answer 6

CA61; S2

Property includes real and personal property, and any estate or interest in any real or personal property, (electricity, money, debt), and any thing in action, and any other right or interest.

Question 7

Service

Answer 7

R v Cara -

“Service is limited to financial or economic value and excludes privileges or benefits”

Question 8

Pecuniary Advantage

Hayes v R

Answer 8

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

Question 9

Valuable Consideration

Answer 9

Hayes v R:
“Anything capable of being a valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.”

Question 10

What are some examples of a valuable consideration?

Answer 10

• Monetary payment in return for goods or services
• Goods given in return for services provided
• Issuing a false invoice to receive payment for goods never supplied

Question 11

Dishonestly

Answer 11

CA61; S217

Acting without a belief that there was express or implied consent from a person entitled to give such consent or authority.

Hayes v R:

The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Question 12

Hayes v R (dishonestly)

Answer 12

Hayes v R:

The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Question 13

Claim of Right

Answer 13

CA61; S2

In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 14

Claim of right - nature of belief required

Answer 14

1. The belief must be in a proprietary or possessory right in property.
2. The belief must be about rights to the “property in relation to which the offence is alleged to have been committed”.
3. The belief must be held at the time of the conduct alleged to constitute the offence.
4. The belief must be actually held by the defendant.

Question 15

Takes

Answer 15

CA61; S219(4)

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 16

Obtains

Answer 16

CA61; S217

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 17

Document

Legislation

Answer 17

CA61; S217

document means a document, or part of a document, in any form; and includes, without limitation,—

(a) any paper or other material used for writing or printing that is marked with matter capable of being read; or
(b) any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative; or
(c) any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced; or
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.

Question 18

R v Misic

Answer 18

“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 19

Use

Answer 19

Use can include a single action, such as handing over a document to its intended recipient, or the continuing use of a document.

Question 20

Uses or Attempts to Use

Hayes v R

Answer 20

Hayes v R:

“An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.”

Question 21

Attempting to commit an offence

Answer 21

CA61; S72

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question of whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 22

What definitions and/or case laws should be included in your discussion of the liability of:

• 228(1)(a) or 228(1)(b) - Dishonestly taking or using a document.

Answer 22

Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; R v Collister;

Definition of obtain: S217, CA61 - obtain means obtain or retain for himself or herself or for any other person;

Definition of property: S2, CA61;

Definition of service: R v Cara;

Definition of pecuniary advantage: Hayes v R;

Definition of valuable consideration: Hayes v R;

Definition of dishonestly: S217, CA61 - acting without a belief that there was express or implied consent from a person entitled to give such consent or authority; Hayes v R - the question is whether the belief is actually held;

Definition of without claim of right: S2, CA61;

Definition of takes or obtains: Takes - S219(4), CA61: when the offender moves the property or causes it to be moved; Obtains - S217, CA61;

Definition of uses or attempts to use: Use can include a single action, such as handing over a document to its intended recipient, or the continuing use of a document; Hayes v R; Attempts - CA61, S72;

Definition of document: S217, CA61; R v Misic;

Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;